Custody Evaluator Immunity Exceptions

see attached:  Appellate court determined that an amicus attorney was immune but only as long as there were no exceptions to immunity (bad faith, malice, willfully wrongful, fraudulent).  This person lost however only because they didn’t produce any evidence that would prove the exception.  
         On appeal, Black argues that Tanner had no right to sue her because she had immunity. Section 107.009 provides that ” an amicus attorney” appointed to assist the court is immune from liability for civil damages ” arising from an action taken, a recommendation made, or an opinion given in the capacity of . . . amicus attorney.” Tex. Fam. Code § 107.009(a). However, this statutory grant of immunity is not absolute; an exception to immunity exists for a recommendation made or an opinion given ” (1) with conscious indifference or reckless disregard to the safety of another; (2) in bad faith or with malice; or (3) that is grossly negligent or willfully wrongful.” Id. § 107.009(b). Immunity under section 107.009 is an affirmative defense. See Tex. R. Civ. P. 94; Zeifman v. Nowlin322 S.W.3d 804, 808 (Tex.App.–Austin 2010, no pet.); Kabbani v. Papadopolous, No. 01-07-00191-CV, 2009 WL 469546, at *2–4 (Tex.App.–Houston [1st Dist.] Feb. 26, 2009, pet. denied) (mem. op.). A defendant raising an affirmative defense must plead and prove all elements of the affirmative defense in order to be entitled to judgment in his favor. See, e.g.,McIntyre v. Ramirez109 S.W.3d 741, 748 (Tex. 2003); Vu v. ExxonMobil Corp., 98 S.W.3d 318, 320–21 (Tex.App.–Houston [1st Dist.] 2003, pet. denied).  

Once Nowlin conclusively established as an affirmative defense that she was entitled to the statutory immunity afforded an amicus attorney, the burden of production shifted to Zeifman to present evidence sufficient to create a fact issue on at least one element of either the affirmative defense or an exception to the affirmative defense. SeePalmer v. Enserch Corp.,728 S.W.2d 431, 435 (Tex.App.-Austin 1987, writ ref’d n.r.e.) (citing Moore Burger, Inc. v. Phillips Petroleum Co.,492 S.W.2d 934 (Tex.1972)). Zeifman did not produce or file any summary judgment evidence at all in response to Nowlin’s motion, relying instead solely on the allegations contained in his petition.